Gender Discrimination Claim to be Decided on Summary Judgment; Evidence Included Praise of Alleged Harasser by Female Employees

In Franklin v. Myth Clothing Co., No. 161482/2019, 2021 WL 743848 (N.Y. Sup Ct, New York County Feb. 24, 2021) – a gender discrimination case – the court determined that the defendants’ motion to dismiss based on documentary evidence (under CPLR 3211(a)(1)) and for failure to state a claim (under CPLR 3211(a)(7)) to a motion for summary judgment under CPLR 3212.

The court summarized plaintiff’s allegations as follows:

Kumar was the principal owner of Myth Clothing Company (“Myth”), an importer of women’s clothes. Kumar hired Franklin on June 12, 2017 as a production coordinator and Franklin worked at Myth continuously until March 22, 2019 when she was fired. Among other allegations, in paragraph 14 of her complaint filed on November 25, 2019, Franklin alleges that Kumar “repeatedly subjected Franklin to an ongoing pattern of discriminatory conduct based on her gender. Similarly situated male employees received more favorable treatment and were not subject to the same conduct.” In paragraph 15 of the complaint Franklin alleges that “Kumar repeatedly and on multiple occasions belittled and bullied Franklin and other female employees” and called them derogatory words in English and Hindi. [Citations omitted.]

Here, the court determined that the best procedural vehicle for evaluating these claims was a motion for summary judgment:

It is well settled that a complaint should be dismissed under CPLR § 3211 (a)(1) when the documentary evidence proffered “utterly refutes plaintiff’s factual allegation” (Goshen v Mutual Life Ins. Co. of NY, 98 NY2d 314,233 [2002]). Moreover, on a motion to dismiss under CPLR §3211 (a) (7) for failure to state a cause of action, the court’s role is limited to determining whether the pleading states a cause of action, not whether there is evidentiary support to establish a meritorious cause of action (see Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]).

In support of their motion to dismiss, Defendants offer documentary evidence including birthday cards to Kumar from female employees, including Franklin, praising Kumar for being a good boss (E8) and several affidavits from female employees (E 10-13) contradicting Franklin’s allegations and lauding Kumar’s managerial and leadership skills. To demonstrate that Defendants fired Franklin for a legitimate business reason, Defendants submit an email (E9) showing that Franklin missed a deadline. The email and affidavits cannot be considered on a pre-answer motion to dismiss unless the court converts the motion to one for summary judgement (see Rovello v Orofino Realty Co., 40 NY2d 633, [1976]); see also Siegel, NY Prac Section 265 at 462 [5th ed 2011], citing Rovello).

The court thus proceeded to set a conference date to discuss a discovery and summary judgment motion briefing schedule.

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